What’s Next After Arizona v. U.S.?

On July 17, the civil rights organizations challenging Arizona’s immigration enforcement law “SB 1070” – which include the National Immigration Law Center (NILC), the American Civil Liberties Union (ACLU), and the Mexican American Legal Defense Fund (MALDEF) – asked a federal district court in Arizona to block the law’s “show me your papers” provision (Section 2B) before it has a chance to go into effect. In June, the U.S. Supreme Court chose not to block Section 2B, partly because the Justices were not yet convinced that Section 2B actually would be implemented in an unconstitutional manner. While the Supreme Court explicitly left the door open to future challenges, its ruling raised the possibility that Section 2B could go into effect shortly.

To try to prevent that from happening, last week, the civil rights organizations went to the same federal district court that originally blocked Section 2B for the federal government in 2010. The organizations now raise additional arguments and submit additional evidence beyond what the Supreme Court had before it in Arizona. It is therefore possible for the district court to decide to block Section 2B despite the Supreme Court’s decision not to in Arizona.

Specifically, the civil rights organizations argue that Section 2B violates the U.S. Constitution in three ways. First, it is “preempted” (or trumped) by federal authority over immigration enforcement and removal (Article 6 of the Constitution states that federal law is the “supreme Law of the Land”). Second, it violates the Fourth Amendment (prohibiting unreasonable detention). Third, it violates the Equal Protection Clause of the Fourteenth Amendment. The organizations ask that Section 2B remain blocked at least until the Arizona state supreme court definitively interprets Section 2B in a way that prohibits any unconstitutional police practices.

As to preemption, the organizations make a different point than the federal government did when challenging Section 2B before the Supreme Court. The organizations point directly to the Supreme Court’s statement in Arizona that it would be an unconstitutional disruption of the federal immigration framework for states to detain people just to verify immigration status without submitting to federal supervision. The organizations now offer evidence that Section 2B will in fact result in detentions that are prolonged solely to verify immigration status. That is, the organizations argue that Arizona intends to implement this section in precisely the manner that the Supreme Court had said would be constitutionally preempted if the facts had been sufficient to support this claim. Here, the organizations point to statements by Arizona police officials about how they plan to implement Section 2B, as well as to official training materials circulated by state law enforcement that do not place any time limit on detention for the purposes of verifying status.

As to the Fourth Amendment (an argument not considered by the Supreme Court), the organizations cite the Supreme Court’s affirmation in Arizona that unlawful presence is not a crime under federal immigration law. The Fourth Amendment authorizes certain deprivations of liberty when there is either reasonable suspicion or probable cause of criminal activity. So when state police choose to stop someone simply for possible unlawful presence, “the usual predicate for an arrest is absent,” the Court held. (Slip op. at 16)

As to Equal Protection (an argument not considered by the Supreme Court), the civil rights organizations argue that “racial or national origin discrimination was a motivating factor in [the] enactment” of SB 1070. (Plaintiffs’ Brief at 2) The organizations offer substantial evidence of statements made by legislators during debates on SB 1070 that indicate this intent: conflating “undocumented” with “Hispanic” or “Mexican”; using camouflaged racial language about protecting citizens from an “illegal alien invasion”; citing false or misleading “facts” about undocumented immigrants to justify passage of the law, especially about the incidence of crime; expressing hope that Section 2B would codify the practices of the infamous Maricopa County Sheriff Joe Arpaio. The organizations also point out the legislative context at the time SB 1070 passed, which included several other bills targeting Latinos (such as bills making English the official language of the state and punishing public schools that offer courses that “advocate ethnic solidarity”).

It is unclear when or how the district court will respond to this latest request to block Section 2B. The Supreme Court’s Arizona ruling pushed the federal government’s challenge to Section 2B back down to the Ninth Circuit Court of Appeals, which must reconsider its previous decision to block Section 2B. The Ninth Circuit could either permit Section 2B to go into effect, or it could push the case back down the lower district court – the same district court to which the civil rights organizations have addressed their latest arguments against Section 2B.

As a final matter, the civil rights organizations are also asking the district court to block SB 1070’s harboring/transporting provision (which was not at issue before the Supreme Court in Arizona). In 2010, the federal government challenged this part of SB 1070 by making only very limited constitutional arguments, and the federal government lost. Now, the civil rights organizations argue that the Supreme Court’s analysis in Arizona requires that the harboring/transporting provision be blocked.

SB 1070 tries to mimic the part of the federal Immigration and Nationality Act (INA) that already punishes the federal crimes of “harboring” and “transporting” unlawfully present persons in certain circumstances (8 U.S.C. § 1324). But as the civil rights organizations point out, the Supreme Court in Arizona rejected the argument that a state has the authority to independently prosecute and punish federal immigration violations. To do so would conflict with Congress’s delegation of enforcement discretion to federal officials and threaten to interfere with federal policy choices – even where the state criminal statute attempts to mirror the federal criminal statute. This conflict is all the more apparent here, because Arizona’s harboring section differs in certain critical ways from the federal statute, which increases the probability of that the crime of harboring will be enforced differently at the state and federal levels. The organizations alternatively argue that the INA has “occupied the field” of noncitizen harboring regulation, such that states have no room at all to legislate in this area.

CLINIC will continue to update its network on the effort to block the “show me your papers” and harboring/transporting sections of SB 1070. Please contact CLINIC’s State & Local Advocacy Attorney Karen Siciliano Lucas at klucas@cliniclegal.org[1] or (202) 635-7410 for more information.